Citation NR: 9704738
Decision Date: 02/10/97 Archive Date: 02/19/97
DOCKET NO. 93-19 415 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUES
1. Entitlement to service connection for a personality
disorder.
2. Entitlement to service connection for hypertension.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
ATTORNEY FOR THE BOARD
Susanne Blume, Associate Counsel
INTRODUCTION
The veteran had recognized service from January to November,
1968.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a
September 1992 determination of the Albuquerque, New Mexico
Regional Office (RO) of the Department of Veterans Affairs
(VA), which denied entitlement to service connection for a
psychiatric disorder and for hypertension.
This matter is presently before the Board after completion of
development requested by the Board in a July 1995 remand.
Subsequent to the remand, the veteran was granted a permanent
and total disability rating for pension purposes.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends he is entitled to service connection for
a personality disorder and for hypertension.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the record does not support a grant of entitlement to service
connection for a personality disorder.
It is the decision of the Board that the claim for
entitlement to service connection for hypertension is not
well-grounded.
FINDINGS OF FACT
1. The veteran has been diagnosed with a personality
disorder.
2. The claim for service connection for hypertension is not
supported by cognizable evidence showing that the claim is
plausible or capable of substantiation.
CONCLUSIONS OF LAW
1. A personality disorder is not a disease or injury within
the meaning of applicable legislation for VA compensation
purposes which was incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 & Supp.
1996); 38 C.F.R. § 3.303(c) (1996).
2. The claim of entitlement to service connection for
hypertension is not well-grounded. 38 U.S.C.A. § 5107.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Entitlement to service connection for
personality disorder.
Factual Background
The veteran's service medical records include a report of
medical history in February 1967. The veteran self-reported
frequent trouble sleeping, depression or excessive worry, and
nervous trouble. Clinical records in May 1968 indicate the
veteran had complaints of being very nervous. A consultation
report shows that the veteran indicated he had been in
trouble with civilian law enforcement nine times in his early
teens. Hyperactivity was noted in July 1968 with Valium
being prescribed. A psychiatric consultation in July showed
a diagnosis of passive aggressive personality.
The veteran was referred for the consult after continuing
complaints of anxiety and hyperactivity. The veteran
indicated he could not adjust to the service. He reported
crying spells and memory lapses. The veteran indicated
numerous jobs prior to the service as well as three different
assignments in seven months of military service. An
additional psychiatric examination was conducted in September
1968. The examiner noted the veteran had had a 9 day
unauthorized leave and that he had been to sick call daily
since his arrival at his current base because of agitation.
The veteran reported he was bothered by his nerves, was
restless and could not sleep. He claimed he could not adjust
to the military situation. The examiner noted that the
veteran had not done well in school, home or on the job and
that a history of lifelong maladjustment was apparent. The
examiner agreed with the previous diagnosis of passive-
aggressive personality with immature features.
Administrative discharge was recommended.
The record includes statements from friends of the veteran
that they noticed a difference in his personality after his
return from service and that he seemed to have a nervous
condition. The statements do not indicate whether this was a
permanent or temporary change.
The medical records include a letter from the veteran's
physician, dated in November 1985, indicating that the
physician treated the veteran for acute anxiety from February
19, 1969 to March 3, 1969. A medical certificate from the
same physician, dated in December 1985, indicated the
veteran's nervousness was bad and that he had stopped
drinking about six months previously.
An additional medical statement, dated in October 1990 but
with an illegible signature and no physician’s name provided,
includes a diagnosis of anxiety disorder.
Clinical notations from VA show the veteran was seen in
October of 1990 and that chronic nervousness was among his
complaints. A December 1990 record shows the veteran
described as generally anxious and includes a notation
questioning if the veteran had an anxiety disorder. A
December 1991 record shows the veteran complaining of being
"real, real nervous lately". He indicated nervousness and
depression. He also indicated he was still drinking and had
family problems. The clinical assessment was alcohol abuse.
A social worker notation for December 1991 shows the veteran
interested in receiving treatment for alcohol abuse. The
notation indicates the veteran had a history of depression
and paranoia and refers to a November 1985 VA
hospitalization. The notation states the veteran reported
his problems went back to when he was prescribed Thorazine
while in the service. The notation concludes that the
veteran changed his mind about seeking alcohol abuse
treatment.
VA medical records indicate the veteran was admitted in April
1992 for alcohol dependence rehabilitation but only stayed
two days before leaving against medical advice. Documents
completed in relation to the veteran's admission included a
psychiatric screening which gave a score of 33 on the Beck
Depressing Inventory with the meaning listed as severe. The
clinical assessment at the time the veteran left included
depression, not otherwise specified, alcohol dependence in
remission for 3 months, rule out bipolar disorder, rule out
depressive episode and rule out panic disorder.
A discharge summary diagnosed alcohol dependency, continued
depression, anxiety and panic disorder, inadequate
personality with immature features, multiple somatic
complaints secondary to anxiety reaction, and somatization.
The veteran received a VA medical examination in March 1993.
The examiner reported that since the April 1992
hospitalization the veteran had had no alcohol. Diagnosis
included history of alcoholism and depression.
In April 1994, VA medical records show the veteran reporting
anxiety and asking for medication to control the anxiety.
Previous medication had made the veteran feel depressed. New
medication was prescribed.
In May 1994 the veteran reported that the medication had not
been very effective and a notation was made to refer him to a
psychiatrist.
The veteran had a VA mental disorders examination in November
1995. The examiner noted that the file had been reviewed and
that the veteran had never been given a definitive
psychiatric diagnosis other than alcohol dependence or abuse.
The diagnosis was alcohol dependence in full remission, rule
out mild dementia or cognitive impairment for chronic alcohol
use. Probable past episode of adjustment disorder with mixed
disturbance of emotions and conduct, and personality
disorder, not otherwise specified with antisocial and
passive-aggressive features. The examiner added that the
veteran appeared to have moderate difficulty with social
functioning.
Analysis
The veteran contends that he is entitled to compensation
because he was diagnosed, and discharged from the service,
with a personality disorder. In the alternative, the veteran
argues that his personality disorder was aggravated by
service.
Service connection may be established for a disability
resulting from personal injury suffered or a disease
contracted in line of duty, or for aggravation of preexisting
injury suffered or a disease contracted in line of duty.
38 U.S.C.A. §§ 1110, 1131.
However, congenital or developmental defects such as
personality disorders are not diseases or injuries within the
meaning of the applicable legislation. 38 C.F.R. § 3.303(c).
With regard to the question of service connection for a
personality disorder, the Board notes that the Court has held
that the "well grounded" concept does not apply to matters in
which the law, rather than the evidence, is dispositive.
Sabonis v. Brown, 6 Vet.App. 426 (1994). As indicated above,
the Board's adjudication of the question of entitlement to
service connection for a personality disorder is dependent on
the application of certain regulatory and statutory
provisions that specifically pertain to such a disorder. The
Board accordingly notes that the "well grounded" standard is
inapplicable as to this question.
Because 38 C.F.R. § 3.303(c) states that personality
disorders are not diseases or injuries within the meaning of
the applicable legislation for determining service
connection, the veteran’s condition does not constitute a
disability for VA purposes, and his claim must be denied as a
matter of law. Sabonis v. Brown, 6
Vet.App. 426 (1994).
II. Entitlement to service connection
for hypertension.
Factual Background
The service medical records show no complaints, findings, or
treatment for hypertension. The pre-induction examination in
February 1967 shows that blood pressure was 124/68. There
are no other blood pressure readings in the service medical
records until his discharge examination. Blood pressure
readings at that time were 116/80.
On file are VA medical records pertaining to blood pressure
testing during the early to mid 1990’s. A March 1992
outpatient treatment report shows an assessment of
hypertension was made. Hypertension was noted in later dated
records. In October 1993 blood pressure was 110/80. It was
noted the veteran had a history of hypertension, that his
blood pressure was normal, and that he was not on any blood
pressure medication.
During a March 1993 VA medical examination the veteran
indicated he first heard that he had hypertension about 6 or
8 months previously, and that he was given pills which made
him dizzy so he discontinued them. Four blood pressure
readings were taken and were reported as 105/80, 110/80 and
115/80,. and 110/80. Hypertension by history with abnormal
electrocardiogram was diagnosed.
The veteran received an examination for compensation purposes
in November 1995. He reported a diagnosis of essential
hypertension in 1993. Medication had been prescribed but
discontinued about six months previously. The veteran was
reported to be totally asymptomatic. Blood pressure readings
were 110/82, 114/84 and 116/86. The examiner indicated that
hypertension was not found.
Analysis
Where a veteran served continuously for 90 days or more
during a period of war or during peacetime service after
December 31, 1946, and hypertension becomes manifest to a
degree of 10 percent within one year from the date of
termination of such service, such disease shall be presumed
to have been incurred in service, even though there is no
evidence of such disease during the period of service. This
presumption is rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 1991);
38 C.F.R. § 3.307, 3.309 (1996).
In a claim for service connection, the appellant has the
burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that the claim is well
grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well-
grounded claim is a plausible claim, that is, one which is
meritorious on its own or capable of substantiation. Such a
claim need not be conclusive, but only possible, to satisfy
the initial burden of 38 U.S.C.A. § 5107(a) (West 1991).
Murphy v. Derwinski, 1 Vet.App. 78, 80 (1990).
The claim must be accompanied by supporting evidence; an
allegation is not enough. Tirpak v. Derwinski, 2 Vet.App.
609 (1992). A claimant must submit supporting evidence that
justifies a belief by a fair and impartial individual that
the claim is plausible. Dixon v. Derwinski, 3 Vet.App. 261,
262 (1992); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992).
One element of a well-grounded claim is a presently existing
disability stemming from the disease or injury alleged to
have begun in or been aggravated by service. Brammer v.
Derwinski, 3 Vet.App. 223, 225 (1992); Rabideau v. Derwinski,
2 Vet.App. 141 (1992). If there is no showing of the current
existence of the disability, the claim is not well-grounded.
Rabideau v. Derwinski, 2 Vet.App. 141 (1992). If the veteran
has not presented a well-grounded claim, the appeal must fail
and there is no duty to assist in the development of the
claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1
Vet.App. 78 (1992)
While the record reflects that the veteran had some elevated
blood pressure readings many years following service and was,
at one time, taking medication for hypertension, it appears
that he does not presently have hypertension. In other
words, the veteran’s claim is predicated on his own lay
opinion.
As it is the province of trained health care providers to
enter conclusions which require medical opinions as to
causation, see Grivois v. Brown, 6 Vet.App. 136, 139 (1994),
the veteran’s lay opinion is an insufficient basis to find
his claim well grounded. See Espiritu v. Derwinski, 2
Vet.App. 492 (1992). Accordingly, as a well grounded claim
must be supported by competent medical evidence, not merely
allegations, see Tirpak, the appellant’s claim for service
connection for hypertension must be denied as not well
grounded.
In reaching this determination the Board recognizes that this
issue is being disposed of in a manner that differs from that
used by the RO. The Board has therefore considered whether
the appellant has been given adequate notice to respond, and
if not, whether he has been prejudiced thereby. See Bernard
v. Brown, 4 Vet.App. 384, 392-94 (1993).
In light of the veteran’s failure to meet his initial burden
in the adjudication process, the Board concludes that he has
not been prejudiced by the decision to deny his appeal. In
such a situation, the Board is not denying service connection
on the merits, but rather is finding that the claimant has
failed to meet his obligation of presenting a claim that is
plausible, or capable of substantiation at this time.
If the appellant or his representative can secure evidence
from competent medical personnel showing that he has
hypertension linked to his service, such evidence may be used
in the filing of a another claim.
The Board views the above discussion as sufficient to inform
the appellant of the elements necessary to complete his
application for a claim for service connection for
hypertension. 38 U.S.C.A. § 5103(a) (West 1991); see
Rabideau, 8 Vet.App. at 77-8 (1995); see also Isenhart v.
Derwinski, 3 Vet.App. 177, 179-80 (1992) (VA has a duty to
advise claimant of evidence required to complete
application).
ORDER
Entitlement to service connection for a personality disorder
is denied.
The veteran not having submitted a well grounded claim of
entitlement to service connection for hypertension, the claim
is denied.
RONALD R. BOSCH
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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